*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-10034

Summary Calendar

REBECCA J. BROWN, on behalf of herself and all other persons

similarly situated,

Plaintiff-Appellant,

VERSUS

NATIONSBANK OF GEORGIA, NA; and JOHN LITZLER,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Texas

(3:96-CV-2630-G)

October 6, 1998

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

PER CURIAM:*

Appellant Rebecca J. Brown (“Brown”) appeals from the district

court’s grant of summary judgment in favor of Defendants/Appellees,

Nationsbank of Georgia (“Nationsbank”) and John Litzler

(“Litzler”). Her claims stem from the termination of a retirement

plan of which the appellees were trustees. Finding no reversible
error, we affirm. 

I. Background and Procedural History

Brown was an employee of Wyatt Cafeterias, Inc. and had

accumulated benefits pursuant to Wyatt’s employee stock ownership

plan (“the ESOP”). Under the ESOP, employees were allocated Wyatt

stock based on company contributions to the ESOP and the employees’

salaries. During appellees term as trustees for the ESOP, Wyatt

stock dropped from around $84.00 per share to virtual

worthlessness. Once the stock became worthless, the ESOP was left

with no assets and was therefore terminated. Appellant brought

this action individually and on behalf of other beneficiaries of

the ESOP, alleging that the appellees had committed fraud and

breached their fiduciary duties as trustees of the ESOP.

Originally filed in state court as a state-law fraud cause of

action, the appellees removed the case to federal district court

based on ERISA preemption. At the district court, appellees then

filed motions to dismiss or, in the alternative, for summary

judgment. The court granted appellees motion to dismiss Brown’s

claims for compensatory and punitive damages for failure to state

a claim on which relief could be granted under ERISA. However,

because neither party had squarely addressed the availability of

equitable relief, the court withheld ruling on appellees’ motions

until the parties had briefed that issue. Appellees submitted

their brief as directed, but Brown instead filed a motion for leave

to amend her complaint. Before the court could rule on Brown’s

motion for leave, Brown filed her amended complaint and amended

motion for class certification. Brown maintained that leave of
court was not required if the appellees hadn’t yet filed a

responsive pleading. After the deadline to respond to appellees

brief had passed, the court granted appellees motion for summary

judgment. 

II. Discussion

After reviewing the record before us and the applicable law,

we conclude that the district court’s granting of summary judgment

on behalf of the Defendants/Appellees should be affirmed.

Summary judgment is appropriate when the summary judgment

record demonstrates “that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter

of law.” FED. R. CIV. P. 56(c). In reviewing the district court’s

grant of summary judgment, we apply a de novo standard of review.

See Rodriquez v. Pacificare of Texas, Inc., 980 F.2d 1014, 1019

(5th Cir. 1993).

Brown asserts that the district court erred in classifying the

claims in her amended complaint as legal rather than equitable

relief. “Equitable relief” under ERISA includes “those categories

of relief which were typically available in equity (such as

injunction, mandamus, and restitution, but not compensatory

damages).” Mertens v. Hewitt Associates, 508 U.S. 248, 256 (1993).

Regardless of the language used to characterize a claim, the claim

is one for damages if it seeks monetary relief for losses an ERISA

plan sustained as a result of an alleged breach of fiduciary

duties. See Id. at 255; see also, Weir v. Federal Asset

Disposition Assn., 123 F.3d 281, 290-91 (5th Cir. 1997).

Accordingly, we agree with the district court’s conclusion that
Brown has simply tried to re-characterize an obvious claim for

damages in the language of equity. 

Next, Brown asserts that the district court erred in ruling

that her claims did not set forth permissive relief under ERISA.

Specifically, she argues that monetary damages relief is available

to an ERISA plan, based on Massachusetts Mutual Life Ins. Co. v.

Russell, 473 U.S. 134 (1985)(holding that extra-contractual or

punitive damages are not available to a beneficiary of an ERISA

plan, but declining to rule on whether they would be available on

behalf of the plan itself). This argument fails for two reasons.

First, there is no longer a plan for which Brown would be able to

recover “on behalf of,” under ERISA §409(a), as she is no longer a

participant in an existing plan. See Sanson v. General Motors, 966

F.2d 618, 621 (11th Cir. 1992)(noting that individuals that lose

their status as a participant or beneficiary of a plan can no

longer recover on behalf of the plan). Second, the Supreme Court

has held that monetary damages (i.e., legal relief) are not

available under ERISA §502(a)’s carefully crafted civil enforcement

provisions. See Mertens, 508 U.S. at 255 (holding that

compensatory damages--monetary relief for losses a plan sustained

as a result of an alleged breach of fiduciary duties--were the

classic form of legal relief). Because it is clear that Brown is

seeking precisely the same classic form of legal relief referred to

in Mertens, and not equitable relief such as restitution or

injunction, the district court correctly ruled that Brown’s claims

did not set forth permissive relief under ERISA.

In Brown’s final point of error, she asserts that the district
court erred in granting summary judgment without affording her the

opportunity to amend pursuant to FED. R. CIV. P. 15. Brown’s basis

for this argument is that neither of the appellees had filed a

responsive pleading prior to the filing of her amended complaint.

While Brown is correct that neither a motion to dismiss nor a

motion for summary judgment constitutes a responsive pleading such

to extinguish a plaintiff’s right to amend a complaint, see Zaidi

v. Ehrlich, 732 F.2d 1218, 1219-20 (5th Cir. 1984), this does not

afford her relief in this case. 

It is clear from our review that the district court

specifically considered the claims in Brown’s amended complaint

when granting appellees’ motion for summary judgment. Having thus

been allowed to fully present her arguments to the court, it would

serve no valid purpose to allow Brown another attempt in vain to

further cloak her original damages claims into the language of

equity.

For the foregoing reasons, the judgment of the district court

is AFFIRMED.